OSHA's ergonomics standard covers all

The U.S. Small Business Administration estimates employers will spend $18 billion in the first year of implementation of the ergonomics standard proposed by the Occupational Safety and Health Administration late last fall.

OSHA contends the costs are lower and predicts its new standard will affect just short of 2 million work sites, at an estimated annual cost of $4.2 billion. It further estimates annual covered employer costs of $150 per work station.

While cost estimates vary, it is apparent OSHA's proposed ergonomics standard will require many employers to implement ergonomics programs or change existing programs, as well as revise various personnel policies and procedures.

OSHA hopes the standard will be in place well before the end of this year.

As it is written, OSHA's ergonomics standard reaches every private sector employer, regardless of size or the nature of operations, except for those engaged solely in maritime, construction and agricultural activities. The standard applies to all manufacturing and manual handling operations, and to all jobs in which only a single work-related musculoskeletal disorder, or MSD, is reported to the employer after the standard's effective date.

The first two job categories, manufacturing and manual handling operations, are neither surprising nor difficult to identify.

Examples of the former, given by OSHA, include assembly, production and maintenance positions. Manual handling operations include positions involving either heavy or frequent lifting or lowering, pushing, pulling or carrying. Nurses, supermarket cashiers and warehouse and delivery workers are examples of positions within the second category.

The third category of jobs covered by the standard is based on a number of subjective judgments. If an employee reports a single MSD, the standard automatically covers that employee's job (and all similar jobs) if three requirements are met:

-- the MSD is "recordable" on the employer's OSHA 200 log (or would be if the employer was required to keep a log);

-- the employee's job presents MSD hazards that are reasonably likely to cause or contribute to the particular MSD reported; and

-- a significant part of the employee's regular job duties involves exposure to the particular MSD hazard.

Once these three requirements are satisfied, the MSD becomes a work-related musculoskeletal disorder.

Employers must make several potentially difficult judgments to determine whether the standard applies to any particular position or group of positions. The critical terms "recordable," "reasonably likely," "cause or contribute," "significant part" and "regular duties" all raise judgment issues that could cause disagreement.

Once it becomes applicable, the ergonomics standard requires the employer to establish an ergonomics program for its manufacturing and manual handling jobs, and for all jobs where a work-related MSD has been reported or identified-or using OSHA's term, "problem jobs."

The ergonomics program required by OSHA for employers with problem jobs must contain as many as seven separate elements, as well as job hazard analysis and hazard control, employee training, medical management for employees who report work-related MSDs, employer evaluation of the effectiveness of its ergonomics program and record keeping.

If an employer has manufacturing or manual handling jobs but no reported work-related MSD cases, its ergonomics program need only contain management leadership, employee participation and hazard identification and information.

Here is a summary of the key elements:

-- Management leadership and employee participation. Responsibilities for establishing and managing the employer's ergonomics program must be assigned to particular individuals, and sufficient authority, training, information and resources must be made available to those individuals.

-- Hazard identification and information. All covered employers must provide employees in problem jobs with information about MSD hazards in their jobs, as well as MSD signs and symptoms; must explain how those employees should report work-related MSD signs and symptoms; and must give an overview of the ergonomics standard.

-- Job hazard analysis and control. Problem jobs must be analyzed and all "ergonomic risk factors" identified. All MSD hazards in those jobs must be eliminated or reduced to the extent feasible, or materially reduced using the standard's incremental abatement process.

-- Training. Employees in problem jobs and their supervisors must receive training when they are initially assigned to those jobs, and at least every three years thereafter. Subjects must include MSD signs and symptoms, reporting signs and symptoms, MSD hazards and how to protect against them, job-specific hazard controls, the employer's ergonomics program and the employees' roles in it, and the requirements of the ergonomics standard.

-- MSD management. A variety of steps must be taken by an employer as soon as an employee reports a work-related MSD. These include a prompt response to ensure that the employee's condition does not worsen, which may mean immediate changes in the workplace or temporary work restrictions for the employee.

One of the most controversial parts of the ergonomics standard is the requirement that for a period of up to six months, the employee must be assigned to an alternative workplace or not work at all, and the employer must continue to pay 100 percent or 90 percent of the employee's post-tax salary.

-- Program evaluation. Employers must evaluate their ergonomics programs at least every three years to ensure compliance with the ergonomics standard. Employee input must be solicited and program deficiencies corrected promptly.

-- Record keeping. Employers with 10 or more employees must create and maintain, for at least three years, detailed records describing their compliance efforts.

Once the ergonomics standard becomes final, employers will have from 60 days to three years to implement each of its elements. MSD management will be required right away, while permanent ergonomic controls and program evaluation are due only after three years. Other elements of the employer's program are due in one or two years.

OSHA had accepted written public comments on the proposed standard through March 1. Public hearings began in late February, and OSHA intends to publish a final rule soon.

Employers already owe a variety of legal obligations to employees with physical limitations or who are injured at work under state workers' compensation laws, the Americans with Disabilities Act and its state law equivalents, and the Family and Medical Leave Act. The new ergonomics standard will add another significant set of obligations, and compliance will not be cheap or easy.

(Justin P. Doyle is a partner with Nixon Peabody LLP. His partner, Michael Hausknecht, assisted with this article.)